Leger (Migration)

[2021] AATA 3977

Leger (Migration) [2021] AATA 3977 (1 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ilaise Leger

CASE NUMBER:  2110604

Home Affairs REFERENCE(S):               CLD2021/21310885

MEMBER:James Silva

DATE:1 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging B (Class WB) visa.

Statement made on 01 October 2021 at 02:50pm

CATCHWORDS

MIGRATION – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – substantial reasons to travel out of Australia – valid application for a substantive visa – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Bridging B (Class WB) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 December 2020, and the delegate decided to refuse the application on 29 July 2021. The applicant sought review of this decision. Registered migration agent Mr Anthony Takchi is representing her in this matter.

   BACKGROUND

3. The applicant is a 26-year-old female citizen of Tonga. She arrived in Australia on 12 December 2014, on a visitor visa (subclass 600), which ceased on 10 January 2015. It appears that she remained in Australia unlawfully from that time until late 2020.

4. The applicant has held successive Bridging E visas: (a) from 22 December 2020 to 23 March 2021; (b) from 16 March 2021 to 30 June 2021; and (c) from 29 June 2021 until 1 December 2021 (ongoing).

5. On 18 December 2020, the applicant lodged a Bridging B visa application. She stated that she wanted to visit Tonga from 1 January 2021 to 14 January 2021, to visit family. As noted above, the delegate refused the application on 29 July 2021, on the basis that the applicant did not meet cl.020.212 of the Migration Regulations 1994 (the Regulations).

6. The applicant lodged an application for review of the delegate’s decision on 16 August 2021, which included a copy of the decision under review.

7. The Tribunal wrote to the applicant on 28 September 2021, advising that it was in the process of scheduling a hearing in the matter, and seeking her advice in relation to the hearing mode (i.e. her access to software to participate in a videoconference, and whether she would prefer a telephone hearing).

8. On 30 September 2021, the representative wrote to the Tribunal advising that the applicant ‘is happy for a decision to be made on the papers at hand rather than attend an interview.’

9. The Tribunal has no reason to doubt the representative’s authority to give the applicant’s consent for the Tribunal to decide this review without a hearing, but nonetheless tried to telephone the applicant on 1 October 2021 to alert her that a decision was imminent, without success. The Tribunal notes that on 4 February 2021, the representative advised the Department that the applicant realises she is not eligible for the grant of a Bridging B visa, but that she wanted the Department to proceed to make the decision. Relevantly, the applicant currently holds a Bridging E visa on departure grounds. In these circumstances, the Tribunal has decided to finalise the matter on the basis of the materials before it.

   CRITERIA FOR THE VISA

10. Class WB contains one subclass (020), and is for the holders of a Bridging visa A or Bridging visa B who have ‘substantial reasons’ for needing to travel out of Australia while their substantive visa application is being processed or while judicial proceedings are on foot. This is the only Bridging visa which permits a holder to re-enter Australia.

11. Clause 020.212(1) states that an applicant must meet the requirements of subclause (2), (3), (4) or (5) at the time of application. Relevantly, subclauses (2)(a) and (3)(a) require that ‘the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia’. Subclauses (4)(a) and (5)(a) require that ‘the applicant has made a valid application for a Partner (Migrant)(Class BC) visa’. Clause 020.221 states that the applicant must continue to satisfy this clause at the time of decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS

12. The delegate, in the decision under review, found that the applicant did not meet cl.020.212(2)(a), as she had not made, in Australia, a valid application for a substantive visa. The delegate then reasoned that the applicant could not satisfy the criterion for the grant of a Bridging B visa.

13. The applicant has not claimed, and there is nothing before the Tribunal to suggest, that she had made, in Australia, a valid application for a substantive visa, at the time of application (on 18 December 2020).

14. The Tribunal therefore finds that the applicant does not meet cl.020.212(2)(a).

15. The delegate found that, as only cl.020.212(2)(a) is relevant to the applicant’s circumstances, she therefore could not meet the criteria for the grant of a Bridging B visa. The Tribunal finds that, as the applicant does not meet cl.020.212(2)(a), for reason of not having made, in Australia, a valid application for a substantive visa, it follows that she also does not meet cl.020.212(3)(a), cl.020.212(4)(a) or cl.020.212(5)(a). She therefore does not meet subclauses 020.212(2), (3), (4) or (5), and does not satisfy the criterion in cl.020.212(1).

16. Clause 020.212 requires (among other things) that an applicant has made, in Australia, valid application for a substantive visa, at the time of application. As the applicant had not made a valid application for a substantive visa at the relevant time, she does not meet cl.020.212 and cannot be granted a Bridging B visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Bridging B (Class WB) visa.

    James Silva
    Member